Decriminalisation or legalisation: injecting evidence in the drug law reform debate

We should all be concerned about our laws on illegal drugs because they affect all of us – people who use drugs; who have family members using drugs; health professionals seeing people for drug-related…

One argument for legalisation is it will move the problem away from police and the criminal justice system, where it currently dominates resources.
AAP Image/Simon Mossman

We should all be concerned about our laws on illegal drugs because they affect all of us – people who use drugs; who have family members using drugs; health professionals seeing people for drug-related problems; ambulance and police officers in the front line of drug harms; and all of us who pay high insurance premiums because drug-related crime is extensive.

Drug-related offences also take up the lion’s share of the work of police, courts and prisons. But what can we do? Some people feel that we should legalise drugs – treat them like alcohol and tobacco, as regulated products. And legalisation doesn’t necessarily need to apply for every illegal drug.

Why legalise?

One of the arguments for legalisation is that it would eliminate (or at least significantly reduce) the illegal black market and criminal networks associated with the drug trade. Other arguments include moving the problem away from police and the criminal justice system and concentrating responses within health.

Governments could accrue taxation revenue from illegal drugs as they currently do from gambling, alcohol and tobacco. A regulated government monopoly could secure direct income; our research suggests this may be as high as $600 million a year for a regulated cannabis market in New South Wales.

The strongest argument against legalisation is that it would result in significant increases in drug use. We know that currently legal drugs, such as alcohol and tobacco, are widely consumed and associated with an extensive economic burden to society – including hospital admissions, alcoholism treatment programs and public nuisance. So why create an environment where this may also come to pass for currently illegal drugs?

The moral argument against legalisation suggests the use of illegal drugs is amoral, anti-social and otherwise not acceptable in today’s society. The concern is that legalisation would “send the wrong message”.

Unfortunately, there’s no direct research evidence on legalisation because no country has legalised drugs yet. But suppositions can be made about the extent of cost-savings to society.

The moral argument against legalisation is that it would send the wrong message.acidpix/Flickr

Indeed, some of our research on a regulated legal cannabis market suggests that there may not be the significant savings under a legalisation regime that some commentators have argued. But these are hypothetical exercises.

Decriminalisation

An alternative to legalisation is decriminalisation. Experts don’t agree on the terminology and there’s much confusion. But, in essence, decriminalisation refers to a reduction of legal penalties. This can be done either by changing them to civil penalties, such as fines, or by diverting drug use offenders away from a criminal conviction and into education or treatment options (also known as “diversion”).

Decriminalisation largely applies to drug use and possession offences, not to the sale or supply of drugs. Arguments in favour of decriminalisation include its focus on drug users rather than drug suppliers. The idea is to provide users with a more humane and sensible response to their drug use.

Decriminalisation has the potential to reduce the burden on police and the criminal justice system. It also removes the negative consequences (including stigma) associated with criminal convictions for drug use.

One argument against decriminalisation is that it doesn’t address the black market and criminal networks of drug selling. There are also concerns that it may lead to increased drug use but this assumes that current criminal penalties operate as a deterrent for some people.

The moral arguments noted above also apply to decriminalisation – lesser penalties may suggest that society approves of drug use.

Many countries, including Australia, have decriminalised cannabis use: measures include providing diversion programs (all Australian states and territories), and moving from criminal penalties to civil penalties (such as fines in South Australia, Australian Capital Territory and the Northern Territory).

Our team’s research on Portugal suggests that drug use rates don’t rise under decriminalisation, and there are measurable savings to the criminal justice system.

The moral argument against decriminalisation is that it suggests society approves of drug use.floresyplantas.net/Flickr

In Australia also, there hasn’t been a rise in cannabis use rates despite states and territories introducing civil penalties for users. And research on diverting drug use offenders away from a criminal conviction and into treatment has shown that these individuals are just as likely to succeed in treatment as those who attend voluntarily.

At the same time, research has also noted a negative side effect to the way in which decriminalisation currently operates in Australia – “net widening” - whereby more people are swept up into the criminal justice system than would have occurred otherwise under full prohibition because discretion by police is less likely and/or they do not fulfil their obligations.

Despite the largely supportive evidence base, politicians appear reluctant to proceed along the decriminalisation path. Some commentators have speculated that this is because of public opinion – decriminalisation is regarded as an unpopular policy choice.

But public opinion is largely in support of decriminalisation, where it concerns cannabis (though not decriminalisation for other illegal drugs). In the last national survey, more than 80% of Australians supported decriminalisation options for cannabis. The other reason for equivocal policy support, I believe, is a lack of clarity about the issues.

There’s poor understanding about the different models of decriminalisation and some basic confusion exists. Many people equate decriminalisation with legalisation, but as detailed above, they are very different in policy, intent and action.

Decriminalisation is also sometimes incorrectly confused with harm reduction services, such as injecting centres or prescribed heroin programs.

The Australia21 Report released last week to stimulate informed public debate is an important step foward. In order for the debate to progress, we need clarity of terms, and dispassionate presentation of what evidence we have. Every policy has both risks and benefits and we need to talk about these.